Date of filing : 22-12-2011
Date of Disposal: 18-07-2012
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri T.Sundara Ramaiah, B.Com., B.L., President (FAC)
Sri S.Niranjan Babu, B.A., B.L.,Male Member
Sri Kum. M.Sreelatha, B.A., B.L., Lady Member
Wednesday, the 18th day of July, 2012
C.C.NO. 04/2012
Between:
M.Venugopal S/o Venkataramappa
Handloom Pure Lace Silk Sarees
Manufactures rep. by its Proprietor
D.No.30/332,Kothapeta
Dharmavaram Town
Anantapur District. …. Complainant
Vs.
- A.N.L. Parcel Service,
Rep. by its agent Naidu
ANL Agent, A.P.S.R.T.C.
Bus Stand, Dharmavaram
Anantapur District.
- A.P.S.R.T.C. rep. by its
Managing Director, Bus Bhavan
RTC Cross Roads,
Hyderabad. …. Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri S.Surendra Chari, advocate for the complainant and Sri N.Ravi Kumar Reddy, advocate for 1st opposite party and Sri B.Satyanarayana Reddy, advocate for the 2nd opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Kumari M.Sreelatha, Lady Member: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 & 2 to direct them to pay a sum of Rs.1,26,300/- with an interest @ 24% p.a. from 12-11-2011 till the date of realization and award Rs.20,000/- towards mental agony and Rs.5,000/- towards legal expenses and also award costs of the complaint .
2. The brief facts of the complaint are that :- The complainant is doing business in Silk Sarees and running a shop in the name and style of M.Venugopal, manufacturing and selling Handloom Pure Lace Silk Sarees. The complainant is doing business for the livelihood of his family and as a part of his business transactions supplies Silk Sarees to various customers on order covered by bills. The complainant submits that Putchala Silk, near Bhaskar Deluxe, Kothapet, Guntur is one of the customer of the complainant. The opposite parties 1 & 2 are undertaking joint venture of parcel service. Both the opposite parties are jointly and severally liable to pay compensation to the complainant. The complainant submits that in pursuance of the order placed by Putchaala Silks, the complainant consigned 29 Silk Sarees worth Rs.74,300/- vide invoice No.78 dt.12-11-2011 and 21 Silk Sarees worth Rs.78,550/- vide Invoice No.80 dated 12-11-2011 in total 51 Silk Sarees in three parcels. The opposite party No.1 undertaking to deliver the parcel to the consignee collected an amount of Rs.442/- towards carrier. The consignment receipt issued by the 1st opposite party bearing No.04338617 dt.14-11-2011 for three parcels is filed alongwith complaint. The opposite party No.1 knowing fully well that the total value of the consignment is Rs.1,52,850/- and noted the same in the goods consignment note. The complainant submits that the joint venture of the opposite parties is to make profit by undertaking parcel service. The opposite parties are expected to act diligently and are legally bound to deliver the consignment to the consignee. The consignment is properly addressed and the telephone number of the consignee is also noted on the consignment which also reflects in the goods consignment note. To the shock and surprise of the complainant, the complainant received a letter addressed by the consignee stating that the opposite party has not delivered the parcels. It is further submitted that on enquiry of the consignee with the agent of the opposite party, the agent of the opposite party informed that one parcel out of three has reached to Guntur and whereabouts of other two parcels has not known. The complainant submits that the opposite parties acting callously and negligently has not taken care to safely transport and deliver the consignment to the consignee. The complainant submits that immediately the complainant duly informed the same to the 1st opposite party. The complainant is also informed by the 1st opposite party admitting that the consignment is not delivered to the consignee and the consignment is lost during transit. The complainant submits that the Area Manager of the 1st opposite party, Kurnool addressed a letter dt.22-11-2011 admitting the shortage of consignment out of booked parcels and returned the available parcel with them containing 5 Sarees to the complainant. The 1st opposite party has also collected an amount of Rs.630/- towards returning charges for the available parcel from the complainant. The complainant submits that the letter addressed by the area Manager of the 1st opposite party dt.22-11-2011 and delivery note cum-cash memo issued to the complainant are filed along-with complaint. The complaint submits that due to the careless and negligent act of the opposite parties the complainant lost goods to a worth of Rs.1,26,300/-. The complainant submits that inspite of repeated demands made by the complainant the opposite parties admitting that the consignment is not delivered and lost during transit and admitting their liability to pay the compensation to the complainant is postponing the same on some pretext or the other. The complainant submits that the opposite parties are grossly negligent and totally failed to take due care and attention in ensuring the delivery to the consignee. It is incumbent upon the opposite parties to ensure that consignment is delivered to the addressee and failure to deliver the consignment and allowing the consignee to be misplaced or losing is a grossly negligent act. By failing to deliver the consignment the opposite parties are guilty of deficiency of service and rendered themselves liable to pay compensation to the complainant. The complainant in addition to the actual loss of Rs.1,26,300/- is subjected to mental torture by the evasive conduct of the opposite parties. The complainant is constrained to approach the opposite parties by leaving his business which is only source of the livelihood of entire family and the complainant sustained huge loss having forced to leave the business for causing enquiry. Hence the complainant prays this Forum to direct the opposite parties 1 & 2 to pay a sum of Rs.1,26,300/- with an interest @ 24% p.a. from 12-11-2011 till the date of realization and award Rs.20,000/- towards mental torture and mental agony and Rs.5000/- towards legal expenses and award costs of the complaint.
3. The 1st opposite party filed counter. The allegations that are made in para 1 of the complaint that the complainant was doing business from this it is very clear that the complainant was doing business for profit purpose. Hence, the complaint is not maintainable as the complainant is not a consumer. Hence the complaint has to be dismissed with the costs of this respondent No.1. Further the allegation that the complainant booked 3 parcels is true. Further it is submitted that under one receipt the complainant booked three boxes and out of that one box was delivered. But at the time of booking the complainant did not enclose invoice. Now they re claiming in the complaint that there are three invoices and claiming Rs.1,52,850/-. Further it is submitted that the person had signed on the consignment note and from this it is very clear that the said person has agreed to terms and conditions of the company. Further it is submitted that as per terms and conditions the liability of this opposite party is Rs.5/- per Kg., It is submitted that the Consumer Forum has no jurisdiction to decide the matter since 11 the dispute subject to Hyderabad Jurisdiction only. Hence, this Forum has no jurisdiction to entertain this complaint. Further it is submitted that the complainant has not paid an amount of Rs.442/- towards transport charges because as per the goods consignment note the consignment was booked under to pay with pass basis the transport charges shall be paid by the party at the destination. Further it is submitted that if the consignment value is higher side the complainant ought to have insured but the complainant has not done so. Further as a normal procedure the 3 parcels dispatched from Dharmavaram through APSRTC Bus only one parcel have been delivered and other two boxes are not delivered and the same was searching. There are no grounds in the complaint. Further the complainant has suppressed the facts of the case and filed this case and hence the complaint has to be dismissed with costs of this opposite parties.
4. The 2nd opposite party filed counter alleging that in para 1 that he is doing business in Silk Sarees and running a shop in the name and style of M.Venugopal, manufacturing and selling Handloom Pure Lace Silk Sarees is not known to this opposite party. He further alleged that he is doing business for the livelihood of his family is denied and the complainant is doing Commercial business and the said Handloom Pure Lace Silk Sarees manufacturer is a commercial establishment, this Forum has no jurisdiction to entertain the above complaint. Hence the above complaint may be dismissed against this opposite party. The complainant further alleged that he is a part of his business transactions supplies silk sarees to various customers on order covered by bills and Putcahala Silk, near Bhaskar Deluxe, Kothapet, Guntur is one of the customer of the complainant is not known this opposite party. The Complainant further alleged that the opposite parties 1 & 2 is undertaking Joint Venture of parcel service is a false and denied the same. In fact the opposite party No.1 business and this opposite party business both are totally different. The complainant further alleged that both opposite parties are jointly and severally liable to pay compensation to the complainant is not correct and denied the same. This opposite party is no way concern to the opposite party No.1, hence this complaint may be dismissed against this opposite party. The complainant alleged in para 3 is totally denied and false. This opposite party is not at all a joint venture with opposite party No.1. In fact the complainant is book parcel with opposite party No.1. If the consignment is not delivered, the 1st opposite party alone liable to pay compensation to the complainant. And more over the agreement made between complainant and the 1st opposite party it is nothing but a by-party agreement not triparte agreement. Hence there is no specific agreement between complainant and this opposite party. Hence the complaint may be dismissed against this opposite party. The allegations made in paras 4 & 5 in the complaint are denied and unaware of this opposite party. The complainant further alleged in para 6 is also not correct and denied the same. If any consignment is not delivered, it is the duty of the complainant to sue against the 1st opposite party but the complainant made this opposite party unnecessarily in the above complaint. Hence the complaint may be dismissed for misjoinder of necessary parties. Hence there is no deficiency of service on the part of this opposite party. Hence, this opposite party is not liable to pay compensation to the complainant. The complainant further alleged in para 7 against this opposite party is denied and false and invented for the purpose of this unjust complaint. This opposite party is not at all liable to pay any compensation, interest and other reliefs as claimed by the complainant at any point of time. It is further submitted that there is no deficiency of service caused to the complainant and more over the complainant has filed this unjust and frivolous and vexatious complaint against this opposite party for harassing the public service corporation. All the documents which are filed before this Forum are invented and created for unjust complaint. Hence this opposite party prays to dismiss the complaint against this opposite party.
5. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether the complainant comes under the definition of consumer?
2. To what relief?
6. To prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Exs.A1 to A6 documents. On behalf of the 1st opposite party, evidence on affidavit of the 1st opposite party has been filed and on behalf of the 2nd opposite party, evidence on affidavit of the 2nd opposite party has been filed and no documents have been marked on behalf of the opposite parties 1 & 2.
7. Heard both sides.
8. POINT NO.1 - As per the complaint and evidence of the complainant, the complainant is the Proprietor of Handloom Pure Lace Silk Sarees manufacturers at Dharmavaram and the complainant is doing business and he used to supply Silk Sarees to various customers on order basis. In that course he sent 3 consignments to Putchaala Silks , Near Bhaskar Delux, Kothapet, Guntur. The counsel for the complainant argued that the complainant booked 29 Silk Sarees worth of Rs.74,300/- vide invoice No.78 and 21 Silk Sarees worth of Rs.78,550/- vide invoice No.80 dt.12-11-2011 through the 1st opposite party ANL Parcel Service by paying a sum of Rs.442/- towards parcel charges. But the three consignments were not reached to consignee within time. After due enquiry by the consignee with the agent of 1st opposite party, the 1st opposite party informed that one parcel out of 3 has reached to Guntur and whereabouts of two parcels are not known. The complainant’s counsel argued that though the 1st opposite party admitted about lost of 2 consignments remaining one delivered to the complainant after collecting a sum of Rs.630/- towards return charges. Hence, the opposite parties are liable to pay compensation jointly and severally. The counsel for the 1st opposite party argued that as per the complaint, the complainant is doing business and Proprietor of the Silk Sarees. Hence, the complainant is not come under the definition of consumer. The counsel also argued that the Forum has no jurisdiction as per section 11 as it is restricted to Hyderabad jurisdiction only and the complainant failed to explain in which two consignments bags were lost and how many sarees were kept in each bag. Further the complainant put his signature on the consignment note, it deemed that he agreed for the terms and conditions and if any liability arise on the part of the opposite parties, it is only Rs.5/- per Kg., If any loss in transit. It is the duty of the complainant that if consignment is involved higher value, he has to insure the goods before booking. Hence the complaint is liable to be dismissed. The 2nd opposite party counsel argued that the complainant is the Proprietor and doing business in Silk Sarees business for commercial purpose and thus the Forum has no jurisdiction to entertain the complaint. The complainant unnecessarily added the 2nd opposite party and the complaint is liable to dismissed for mis-joinder of necessary parties. The counsel also argued that there is no venture with the opposite parties 1 & 2 and 1st opposite party is liable to pay compensation. There is only agreement between the complainant and the 1st opposite party and there is no specific agreement between the complainant and APSRTC /2nd opposite party. Hence there is no question of jointly and severally liability. On this ground the complaint is liable to be dismissed. On perusal of the complaint, evidence and documents of the complainant, it clearly shows that the complainant is the proprietor of M/s M.Venugopal , Handloom Pure Lace Silk Sarees Manufacturers at Dharmavaram and manufacturers of the Silk Sarees and he is doing business. In that course he sent 50 Silk Sarees to Putchaala Silks, Guntur on 12-11-2011 through 1st opposite party Parcel Service and worth of sarees in total Rs.1,52,850/- as the same is mentioned in the consignment receipt also. As per section 2(d) (ii) of Consumer Protection Act to claim as consumer the person as to prove that “ Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, when such services are availed of with approval of the first mentioned person (but does not include a person who avails of such services for any commercial purposes). “
9. In the present case the facts appearing on record it is manifest that the complainant is the manufacturer of Silk Sarees and is carrying on business and he is Proprietor. In the course of his business, he used to send the Sarees on order basis. In that course of his business, the complainant sent 50 silk sarees worth of Rs.1,52,850/- to Putchaala Silks, Guntur. Basing on the documentary evidence, he used to send the sarees in lakhs of rupees to one customer in one time. When the Forum put oral question to the complainant at the time of arguments, how many workers are working with him, he replied that 20 workers are working with him. It shows that the business of the complainant is not only for livelihood and it is for commercial purpose. The complainant is in a position to give employment to others and he used to pay salaries to them for hiring services in the course of their employment. Thus he is doing business not only for livelihood of his family. In general if the manufacturing unit is there, definitely the manufacturers used to supply the goods in various places and the same was disclosed in para 1 of the complaint that the complainant as a part of his business transaction, he used to supply Silk Sarees to various persons and Putchaala Silks one of the customers of the complainant in his business. More-over the complainant fialed to mention in the complain that how many sarees were kept in one bag and what type of sarees were misplaced in transit as the complainant failed to file invoices alongwith parcels with the 1st opposite party at the time of booking. It is general rule that when the goods are booked the consignor has to send original invoices alongwith goods to the consignee. In the present case the complainant filed original invoices before this Forum Ex.A1 and A2. The complainant also failed to mention that what are the sarres which he received in one bag by paying a sum of Rs.630/- towards delivery charges by the 1st opposite party and the Forum has got doubt that how could assess that the remaining 46 sarees were in two lost parcels. The 1st opposite party contended that the complainant has not submitted invoices at the time of booking the consignments and the complainant put signature on the consignment note it deemed that the complainant admitted the terms and conditions.
10. As per Supreme Court ruling in AIR 1999 SC 3356 reported in Kalpavrukhsha Charitable Trust Vs. Shniwal Bros. Pvt. Ltd., 1997(1) SCC 131 in Chema Engineering Services Vs. Rajan Singhand 1995(3) S.C. Cases 583 in Lakshmi Engineering Works Vs. P.G.I. Industrial Institute. In the above three cases the Hon’ble Supreme Court held that the “ the word self-employment is not defined in the Consumer Protection Act. It is a matter of evidence and on consideration it is concluded that manufacturer and sale of bricks in a commercial way may also be to earn livelihood but merely earning livelihood in commercial business does not mean that it is not for commercial purpose. The burden is on the person who pleads that business for livelihood. In the above said findings recorded as the complainant is not a consumer under section 2(1)(d) of the Consumer Protection Act.
11. POINT NO.2 - In the result the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 18th day of July, 2012.
MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTIES
-NIL- -NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 – Original Invoice No.78 dt.12-11-2011 for Rs.74,300/- issued by the
Complainant.
Ex.A2 - Original Invoice No.80 dt.12-11-2011 for Rs.78,550/- issued by the
Complainant.
Ex.A3 - Carbon copy of consignment Note dt.14-11-2011 issued by the 1st opposite
Party.
Ex.A4 - Letter dt.18-11-2011 sent by Putchaala Silk, Guntur to the complainant.
Ex.A5 - Letter dt.22-11-2011 issued by the 1st opposite party to the complainant.
Ex.A6- Delivery Note-cum-Cash Memo by the 1st opposite party to the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
- NIL -
MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
Typed by JPNN
